Glass v. United States

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 18, 2003
• Docket: 02-11370
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 13, 2003

Charles R. Fulbruge III No. 02-11370 Clerk Summary Calendar

STUART E. GLASS,

Plaintiff-Counter Defendant-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Counter Claimant-Appellee.

Appeal from the United States District Court for the Northern District of Texas (3:00-VC-1543-L)

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Glass appeals a summary judgment dismissing, without

prejudice, his 26 U.S.C. § 7433 claims (damages for improper

collection of Federal taxes) and his 26 U.S.C. § 7422 claim for

refund of $ 1,249. The district court concluded it lacked subject

matter jurisdiction over these claims because Glass failed to

exhaust his administrative remedies.

Sections 7422 and 7433 provide a limited waiver of sovereign

immunity. Under § 7422, a taxpayer may sue for a refund of taxes

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. erroneously or illegally assessed; under § 7433, for direct

economic damages “in connection with any collection of Federal tax

with respect to a taxpayer”, where an IRS officer or employee

intentionally, recklessly, or negligently disregards provisions of

the tax code or regulations.

Both provisions limit the sovereign immunity waiver by

requiring taxpayers to file administrative claims before seeking

remedies under these statutes. 26 U.S.C. § 7422(a)(no suit “until

a claim for refund ... has been duly filed with the Secretary”); 26

U.S.C. § 7433(d)(1) (no damages “unless the court determines that

the plaintiff has exhausted the administrative remedies available

to such plaintiff within the” IRS).

Of course, when a plaintiff suing the United States has failed

to satisfy the terms of a waiver provision, the court lacks

jurisdiction. E.g., Koehler v. United States, 153 F.3d 263, 266

(5th Cir. 1998) (no waiver where action outside scope of 28 U.S.C.

2410(a) (authorizing action to quiet title where United States

holds lien or mortgage on property); Porter v. Fox, 99 F.3d 271,

274 (8th Cir. 1996) (failure to exhaust administrative remedies

under § 7433 deprives court of jurisdiction); Venen v. United

States, 38 F.3d 100, 103 (3d Cir. 1994) (same); Conforte v. United

States, 979 F.2d 1375, 1377 (9th Cir. 1993) (same).

The requisite administrative procedures necessary for bringing

a § 7433 claim are found in 26 C.F.R. § 301.7433-1(e). Shaw v.

2 United States, 20 F.3d 182, 183 (5th Cir.), cert. denied, 513 U.S.

1041 (1994). This regulation states that putative plaintiffs must

file an administrative claim and wait six months before bringing an

action in district court. 26 C.F.R. § 301.7433-1(a) & (d). The

claim must be in writing and signed by the taxpayer or his

authorized representative and must state: the taxpayer's name and

address; the grounds for the claim; a description of injuries; and

the dollar amount of the claim. 26 C.F.R. § 301.7433-1(e).

For the § 7433 improper collection claim, at issue are the

following IRS actions: (1) a 5 April 1999 Notice of Tax Due on

Federal Tax Return; (2) a 2 August 1999 Notice of Intent to Levy;

and (3) a 13 September 1999 notice of withholding a $ 1,249 refund

as partial payment of a 26 U.S.C. § 6672 civil penalty.

Glass asserts that two letters, dated 3 June and 3 September

1999, are administrative claims, respectively, for the first two

purportedly improper collection actions. The district court held

these letters are not administrative claims because they do not

request an administrative hearing. As noted, 26 C.F.R. § 301.7433-

1(e) does not require such a request. Nonetheless, these letters

fail to meet § 301.7433-1(e)’s requirements. Although these

letters challenge the assessment of $17,052.68 and request a refund

of $100 for tax liability, they do not assert improper collection

or a dollar amount in damages for that claimed improper conduct.

See Shaw, 20 F.3d at 184 (“improper assessment deals with the

3 decision to impose tax liability while improper collection activity

involves conduct of an agent trying to collect the taxes owed”).

As for the last collection action and the § 7422 refund claim

of $1,249, the district court concluded Glass failed to submit an

administrative claim. Glass asserts: the 3 September 1999 letter

properly challenged the underlying action for which the IRS

withheld the $1,249; the IRS' withholding this money was

unforeseeable; and his administrative remedies were thereby

exhausted. As stated above, the 13 September letter is not an

administrative claim; and the record does not reflect Glass

submitted other letters regarding the $1,249 withholding.

AFFIRMED